COMMONWEALTH v. BODDIE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant was convicted, after a jury trial, of possessing cocaine.² In this, his direct appeal, he argues that his motion for mistrial was erroneously denied. We affirm.

In the process of executing a search warrant, police located three grams of “crack” cocaine and $240 in a size eleven work boot next to where the defendant lay asleep with a woman in the bedroom of an apartment.³ Another man and woman were asleep on a couch in the living room when the warrant was executed. On cross-examination, defense counsel pursued a sound line of questioning designed to suggest that police leapt to the conclusion that the drugs belonged to the defendant without first exploring whether they belonged instead to one of the other people present in the apartment. As part of that strategy, the following exchange took place:

Q.: “Did you attempt to figure out if Mr. Dawson in fact stayed there [at the apartment]?”

A.: “No. The target of my investigation was Mr. Boddie. That's who I focused on.”

Q.: “You made all your focus on him, correct?”

A.: “Yes. If there were other people involved, I would have found out through my investigation.”

Q.: “All right.”

After eliciting this testimony, defense counsel then moved for a mistrial. The judge struck the answer instead and instructed the jury that the “last response is stricken from the record. You are to disregard that and you're not to speculate as to what other investigation might have been done in this case.” No objection was lodged to the instruction.

However, the defendant renewed his request for a mistrial after the close of the evidence, before closing arguments. In addition, defense counsel requested that the prosecutor make no mention of the police investigation leading to the warrant because that information was not in evidence. The prosecutor agreed, stating her understanding that the judge “struck that testimony” and therefore it could not be mentioned in closing. True to her word, despite the fact that the defendant asked the jury to focus on the many things the police did not do or explore before concluding the drugs belonged to the defendant, the prosecutor made no reference in closing to the investigation leading to the search warrant or to the defendant being a target. In his final charge, the judge again instructed the jury to disregard any testimony that had been struck.⁴ And, again, no objection was lodged to the judge's instruction.

We review a judge's denial of a motion for mistrial for abuse of discretion. See Commonwealth v. Bryant, 447 Mass. 494, 503 (2006) (“The decision whether to declare a mistrial is within the discretion of the trial judge”). “Where a party seeks a mistrial in response to the jury's exposure to inadmissible evidence, the judge may ‘correctly rel[y] on curative instructions as an adequate means to correct any error and to remedy any prejudice to the defendant.’ ” Commonwealth v. Kilburn, 426 Mass. 31, 37-38 (1997), quoting Commonwealth v. Amirault, 404 Mass. 221, 232 (1989). A trial judge is in the best position to determine whether a mistrial is necessary, or whether a less drastic measure such as striking the pertinent testimony or curative instructions are adequate. See Commonwealth v. Costa, 69 Mass. App. Ct. 823, 826-827 (2007).

Here, the Commonwealth neither elicited nor exploited the brief testimony at issue. Although the judge struck only the “last response,” it was apparent to the parties that the topic of the investigation leading to the search warrant had been struck, and they proceeded accordingly. The jury were instructed not to consider the struck testimony in any fashion, and the lack of objection by experienced trial counsel is some indication of the instruction's adequacy. Finally, even assuming that the jury understood that the reference to the defendant being a “target” had not been struck, there is nothing to indicate that the jury were potentially influenced by that single reference, or how it would have borne on the central issue, which was whether the defendant possessed the drugs in the boot.

Judgment affirmed.

FOOTNOTES

2.   The defendant was indicted for unlawful possession of a controlled substance with intent to distribute, see G. L. c. 94C, § 32A (c), as a subsequent offense, see G. L. c. 94C, § 32A (d). He was convicted of the lesser included offense of possession only, and the subsequent offender portion of the charge was dismissed.

3.   There was evidence that the defendant's shoe size was an eleven.

4.   “Also, you may not consider any answers that I struck from the record and told you to disregard. Please do not consider such answers.”